Opinion
Case No. 2:04-CV-105.
June 15, 2004
ORDER
Mr. Troy Allen Rogers, ("Movant") a prisoner serving a forty-one-month sentence, moves this court to amend his sentence pursuant to 28 U.S.C. § 2255. On September 18, 2001, the Movant was arrested on an outstanding warrant and for unlawful possession of a firearm, and placed into State custody. On January 3, 2002, the Movant was named in a federal indictment and a federal arrest warrant was issued for him on two counts: (1) possession of a firearm by a convicted felon, and (2) possession of a stolen firearm. On January 4, 2002, a Writ of Habeas Corpus Ad Prosequem was issued by Magistrate Judge Boyce. Movant made his initial appearance before Magistrate Judge Boyce on January 10, 2002. At this time, the Movant requested to remain in federal custody and was remanded to the custody of the United States Marshall Service.
On August 2, 2002, the Movant entered a plea of guilty to possession of a firearm by a convicted felon and pursuant to a plea agreement the Court dismissed count two of the indictment. The Movant was sentenced on November 26, 2002, to 41 months of imprisonment with credit for time served in federal custody, and 36 months of supervised release. He now moves this Court to amend the imposed sentence pursuant to 28 U.S.C. § 2255.
ANALYSIS
Movant makes several arguments in support of an amendment to his term of imprisonment. These arguments include inadequacy of counsel; miscalculation of time served; and deprivation of his Second and Ninth Amendment rights.
The Tenth Circuit Court of Appeals has established that in order to claim a right to bear arms under the Second Amendment, the Movant must be a member of a state regulated militia. See U.S. v. Bayles, 310 F.3d 1302, 1307 (10th Cir. 2002). In addition, Congress amended 18 U.S.C. § 922(g) to criminalize possession by felons of only those firearms which have traveled in interstate commerce. This requirement that the weapon be an instrument of interstate commerce remedies the flaw in U.S. v. Lopez, 115 S.Ct. 1624 (1995) and therefore does not violate Movant's Constitutional rights.
Under 28 U.S.C. § 2255, a movant has "a 1-year period of limitation" in which to file his motion. This period is calculated from (1) the time of sentence; (2) the date on which an unconstitutional barrier to the motion is lifted; (3) the date on which the movant's asserted right is recognized by the Supreme Court; or (4) the date on which facts supporting the movant's claim could have been discovered through due diligence, whichever of these is latest. Here, the relevant time catalyst is the date of sentencing. This motion was filed on February 2, 2004. This date is more than one year after the Movant's date of imposed sentence, November 26, 2002.
The Movant states that he had mailed to this Court a 28 U.S.C. § 2255 petition form on August 4, 2003. However, there is no record of such a petition being filed with this Court in August. All records show Movant's criminal proceedings and this currently filed civil proceeding dated February 2, 2004. This Court must therefore deny the Movant's petition due to the expiration of the statute of limitations imposed by § 2255.
Movant raises an additional issue regarding the calculation of his sentence by the United States Bureau of Prisons in his § 2255 motion. However, such a claim is improperly raised in a § 2255 motion and ought to be raised in a § 2254 motion seeking a writ of habeas corpus in the district in which he is incarcerated. Due to Movant's extensive claims under the Second and Ninth Amendments, the Court cannot simply characterize this filing as a § 2254 motion and transfer the case to Colorado.
Movant misquotes the Court in his motion by claiming that the Court "specifically stated on the record that the Movant would receive `credit for the time in custody awaiting trial and sentencing, since September 18, 2001.'" Movant's Motion at 1-2, Rogers. In fact, the Court stated that "[t]his defendant will be given credit for the time that he's already served toward that sentence." Transcript of Sentencing Hearing at 13, US v. Rogers, (No. 2:02CR011JTG) However, while the Court did not specify the date claimed by the Movant as the basis for calculation, it is possible that the United States Bureau of Prisons has not accurately assessed his time served, especially as he was taken into federal custody in January of 2002 but receives credit only from March of 2002.
Accordingly it is
ORDERED, that the Prisoner's motion to vacate his sentence is DENIED and Dismissed Without Prejudice so that he might file a proper motion for a corrected sentence under § 2254 in the district of his confinement.